Wilke Fleury is again participating in the Sacramento County Bar Association’s Diversity Fellowship program and welcomes Neha Mac for the summer. Ms. Mac received her bachelors degree from University of San Francisco and is currently an evening student at University of the Pacific, McGeorge School of Law, where she recently finished her second year. She is involved with the South Asian Bar Association of Sacramento and the McGeorge Orientation and Mentorship committees and looks forward to gaining invaluable experience over the summer.

In investigations of alleged discrimination under California’s Fair Employment and Housing Act, workplace investigators frequently rely on standards enunciated by federal courts interpreting Title VII, as such standards often apply equally to cases brought under California’s Fair Employment and Housing Act. California courts have expressly recognized the overlap between the two statutory schemes and the appropriateness of relying on federal Title VII cases when considering FEHA claims. In some cases, however, California has considered and rejected the federal stray remarks doctrine. As a result, workplace investigators must be more wary of relying on federal authorities when determining whether discrimination has occurred.

The “Stray Remarks Doctrine”
The stray remarks doctrine was first coined by the U.S. Supreme Court in 1989 and has since been adopted and notably expanded by federal circuit courts. Under this doctrine, federal courts deem irrelevant any remarks made by non-decisionmaking coworkers and remarks made by decisionmaking supervisors outside of the decisional process of adverse employment decisions, and evidence of such stray remarks are insufficient to defeat summary judgment. Further, federal courts treat ambiguous comments as stray remarks because they do not sufficiently indicate discriminatory animus.

In Reid v. Google, the California Supreme Court rejected the “Stray Remarks Doctrine” and held that California courts must consider the totality of the evidence, including any relevant discriminatory remarks, in determining whether discrimination has occurred. This decision represents a significant divergence from the Federal Courts’ acceptance of the “Stray Remarks Doctrine” and creates impetus for California employers to make efforts to eliminate all inappropriate comments from the workplace.

Case Background
In 2002, Google hired Brian Reid, age 52, to be Google’s director of operations and director of engineering. Reid alleged that during his employment at Google, an executive to whom Reid occasionally reported, as well as other co-workers, made derogatory age-related remarks to him. According to Reid, the executive told him his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” and that he did not “display a sense of urgency” and “lack[ed] energy.” Other coworkers called Reid an “old man” and an “old fuddy-duddy,” and joked that Reid’s compact disc jewel case office placard should be an “LP” instead of a “CD.” Less than two years later, Google terminated Reid’s employment, stating that he was not a “cultural fit.” Reid then sued Google, alleging age discrimination and offering as evidence the comments that had been made to him. Google moved for summary judgment, arguing that the comments were stray remarks and thus insufficient to defeat the motion. The trial court granted Google’s motion, finding Plaintiff’s evidence insufficient to raise a triable issue. The Court of Appeal reversed, rejecting Google’s argument that the alleged ageist comments were stray remarks and finding them sufficient to create an inference of illegal discrimination.

The Supreme Court’s Decision
The California Supreme Court affirmed the decision of the Court of Appeal, holding that the comments made by Reid’s supervisors and coworkers should not be viewed in isolation as stray remarks, but instead should be considered with all the evidence in the record. The Court rejected the stray remarks doctrine for a number of reasons. First, the Court explained that strict application of the stray remarks doctrine would result in a court’s categorical exclusion of evidence even if the evidence was relevant. The Court noted that remarks not made directly in the context of an employment decision and remarks uttered by a non-decisionmaker may still be relevant circumstantial evidence of discrimination, particularly where a non-decisionmaker influences a decisionmaker. Second, strict application of the stray remarks doctrine would be contrary to the procedural rules codified by statute and adopted in California cases. Specifically, California law directs that at the summary judgment stage, courts “shall consider all of the evidence set forth in the papers and all inferences reasonably deducible from the evidence.” Third, while a stray remark alone may not create a triable issue of discrimination, when combined with other evidence of pretext, an otherwise stray remark may create evidence that is sufficient to defeat summary judgment. Fourth, because there is no precise definition of who is a decision maker or what constitutes a remark made “outside of the decisional process” in the employment context, federal courts have treated identical remarks inconsistently. Thus, the Court concluded, in a California employment discrimination case, the stray remarks doctrine is not to be applied and the court is to consider all alleged discriminatory comments.

What This Means for You
In California, even casual comments made by non-decisionmaking employees or ambiguous remarks made by decisionmakers outside of the decisionmaking process may be used as evidence of discrimination. Employers must take care to ensure that all employees are trained regarding proper conduct in the work place. This includes making sure that employees do not make improper and potentially discriminatory comments about another employee’s race, ethnicity, sex, gender, age, sexual orientation and the like. Even comments as seemingly innocuous as “lethargic” and “quick study” may be found to constitute evidence of age discrimination. Finally, you should ensure that all employment decisions are made based on objective qualifications that cannot be misinterpreted as potentially discriminatory.

FMLA Leave
The Family and Medical Leave Act (FMLA) is a federal law that has long provided for up to 12 weeks per year of protected family and medical leave from work for qualifying employees. Typically, employees take FMLA leave to receive medical treatment for the employee’s own illness or injury, or to care for an ailing spouse or family member.
Recently, in response to the country’s prolonged involvement in military operations in Iraq and Afghanistan, Congress created two new categories of FMLA leave: (1) military caregiver leave, and (2) military qualifying exigency leave. These new categories are in addition to the family and medical leave already provided for under the FMLA.

Military Caregiver Leave
Military Caregiver Leave provides up to 26 weeks of time off per year for an employee to care for a child, parent, spouse, or next of kin who is a “covered military member” – i.e., a current member of the Armed Forces (including the National Guard and Reserves), or a member of the Armed Forces, the National Guard, or Reserves on the temporary disability retired list – and who has a serious injury or illness sustained while in the line of duty. “Next of kin” is defined as anyone other than a child, parent, or spouse who is the nearest blood relative of the covered member. Typically, covered members designate their “next of kin” for military caregiver purposes, but if none is selected, the following level of priority applies: blood relatives granted legal custody of the servicemember; brothers and sisters; grandparents; aunts and uncles; and first cousins. Under military caregiver leave, “children” and “parents” include step-children and step-parents and foster or adopted children and parents.

Military Qualifying Exigency Leave
Military Qualifying Exigency (QE) Leave provides 12 weeks of leave per year for an employee whose child, parent, or spouse is a “covered military member” – meaning in this case that he or she is either a member of the reserve components (Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve) or a retired member of the Regular Armed Forces or Reserve – that is on active duty or notified of impending active duty status in support of a “contingency operation.” “Contingency operations” are those that either (1) are designated by the Defense Secretary as one in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force, or (2) result in active duty of members of the uniformed services during a war or national emergency declared by the President or Congress. (The military member’s active duty orders should specify if the call is for a “contingency operation,” and employers may require that the employee certify the need for leave by providing either those orders or a signed statement from the employee describing the facts supporting the request for QE leave.) Note that QE leave does not apply to family members of the Regular Armed Forces or Reserve on active duty or call to active duty status – only reserves and retired members.

The Department of Labor has identified eight categories of QE leave – key to each of these is that the need for leave must arise out of the fact that the employee is a parent, child, or spouse of a covered military member:

1. Short-notice deployment. The eligible employee may take up to seven days of leave if his or her spouse, parent, or child is given seven days’ notice or less of deployment.
2. Military events and related activities. The eligible employee may take leave for any official, military-sponsored ceremony, program, or event related to the active duty or call to active duty status of a covered military member. Leave may also be taken to attend family support or assistance programs sponsored or supported by the military or the American Red Cross that relate to the active duty or call to active duty status of a covered military member.
3. Childcare and school activities. Eligible employees may take leave to make child care arrangements or to attend certain school functions for the child of a covered military member.
4. Financial and legal arrangements. Eligible employees may take leave to make or update financial and legal arrangements for when the covered military member is on active duty or call to active duty.
5. Counseling. Leave is available for the employee, the covered military member, or the covered military member’s child to attend counseling by a non-health care provider, as long as the counseling arises from active duty service or call to active duty.
6. Rest and recuperation. As much as five days of QE leave is available to an eligible employee to spend time with a covered military family member on rest and recuperation leave during his or her deployment.
7. Postdeployment activities. For 90 days following the termination of active duty status, eligible employees may take leave to attend ceremonies incident to the return of the covered military family member, such as ceremonies and reintegration briefings, or to address issues related to the death of a covered military family member, such as recovering the body and making funeral arrangements.
8. Other additional activities. The employer and employee may agree that other events arising out of a covered military member’s active duty or call to active duty status qualify as exigency. In such instances, the employer and employee must agree on the QE coverage, timing, and duration.

As with traditional FMLA leave, eligible employees may take leave under either the QE or military caregiver provisions on an intermittent or reduced schedule basis. Also as with traditional FMLA leave, employees must make a reasonable effort to schedule any leave for medical treatment so as to disrupt the employer’s operations as little as possible, and employees must give as much notice as practicable in advance of their leave.

The same approaches that employers have used in the past to manage their FMLA leave policies apply to these new categories, as well. For instance, employers would be wise to:

• Require written notice of leave in advance;
• Track all periods of leave, and keep all records regarding leave eligibility, determinations and notifications on file, ideally with one dedicated person;
• Avoid inflexible leave policies that will interfere with the obligation to make decisions on a case-by-case basis;
• Get specific information regarding the need for the leave up front to avoid later problems and miscommunication; and
• Provide notice to the employee that FMLA leave time is being counted, and notify the employee before his or her leave time is exhausted.

These common-sense precautions will minimize the problems with and abuse of FMLA leave that many employers confront.

Wilke Fleury partner Dan Baxter was recently elected to serve as Chairman of the Board of Directors for Teaching Everyone Animals Matter ("TEAM"), a non-profit organization formed to assist Sacramento County Animal Care and Regulation in caring for the lost, abandoned, abused, and neglected animals in Sacramento County. Dan has been involved with TEAM for several years, and Wilke Fleury itself has also sponsored TEAM through Wilke Fleury’s "Jeans Friday" program, in which employees contribute $5 to selected non-profit organizations for the privilege of wearing jeans on Fridays.

Dan’s duties as TEAM’s Chairman will consist of, among other things, overseeing Board meetings, writing letters on behalf of the organization, appearing at events, and ensuring that TEAM’s mission continues to be fulfilled.

Wilke Fleury congratulates Dan on his new position!